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STATE BAR OF NEVADA
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Nevada Lawyer Magazine
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“Few law schools make negotiation, mediation or any other ADR course, mandatory. But much of what a lawyer does on a day-to-day basis falls squarely into the ADR category.”
Dean’s Column
BY RAY PATTERSON, Associate Director, saltman Center for Conflict Resolution
sALtMAn CenteR Hosts sUMMeR institUte in DisPUte ResoLUtion
Twenty years ago psychologists studying the endowment effect1 proposed the concept of loss aversion2 to explain it.3 Are you aware of the concept of loss aversion and how it can make it difficult for your client to accept what seems like a perfectly reasonable offer from your adversary? Do you have any idea how to get around this problem? How about anchoring4? Do you know how it can both help you and harm you in a negotiation? Can you spot reactive devaluation5 when it happens? Do you know what your client’s BATNA6 is? And are you able to separate your client’s positions7 from her needs8? If all of this seems Greek to you, you would have benefited from attending the first annual Summer Alternative Dispute Resolution (ADR) Institute, hosted by the Saltman Center for Dispute Resolution, which took place in May and June 2010 at the William S. Boyd School of Law. Current law and graduate students, attorneys and other professionals were able to take intensive short courses on dispute resolution with national and local experts. This summer’s Institute faculty consisted of Professor Michael Moffitt, Assistant U.S. Attorney Roger Wenthe and Professor Russell Korobkin. Professor Moffitt is the Associate Director of the ADR Center and Orlando J. and Marian H. Hollis Professor at the University of Oregon School of Law in Eugene. Before he joined the faculty at UO, Moffitt served as the clinical supervisor for the mediation program at Harvard Law School and taught negotiation at Harvard and Ohio State University College of Law. He spent several years consulting on dispute resolution projects around the world, and his clients have ranged from senior judges to tribal leaders. Most of his research and writing has centered on the practice of mediation, negotiation and dispute resolution. Moffit taught a class on mediation. Students studied the common dynamics that arise between disputants and learned a range of approaches and skills that mediators employ to address those dynamics. The class used many interactive exercises so students could apply theory to practical situations. Roger Wenthe currently serves the U.S. Attorney’s Office as its Civil Health Care Fraud Coordinator. He practiced in the litigation department of McDermott, Will & Emery in Chicago for 18 years, and for six years he was a circuit Mediator for the United States court of Appeals for the Seventh Circuit in Chicago. Wenthe’s course looked at dispute resolution in the workplace. Touching on mediation and arbitration’s role in the employment milieu, he also offered simulation exercises that involved not only legal theories underpinning workplace ADR, but also the humanistic realities that confront practitioners when trying to achieve negotiated resolutions of workplace conflicts. Russell Korobkin, Professor of Law at the UCLA School of Law, has published more than 40 law journal articles in the fields of behavioral law and
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economics, negotiation and alternative dispute resolution, contract law, health care law and stem cell research. He has also taught negotiation at Harvard Law School, Vanderbilt University Law School and Pepperdine University’s School of Law. Korobkin offered a course on advanced negotiation, focusing on negotiation theory and practice. The course included insights offered by cognitive theory, game theory and other disciplines. Simulations were integral to the class. Few law schools make negotiation, mediation or any other ADR course, mandatory. But much of what a lawyer does on a day-to-day basis falls squarely into the ADR category. It makes sense for practitioners to be as current with their knowledge and skills as possible in this area. The Summer ADR Institute was created specifically to address this need for currency. Please consider taking part in next summer’s Institute. ray PattersON is the Associate Director of the Saltman Center for Conflict Resolution and Director of the Strasser Mediation Clinic at the William S. Boyd School of Law. He received his J.D. from the Benjamin N. Cardozo School of Law in New York City. Before coming to Las Vegas he was the Director of Communications and Dispute Resolution for New York City’s Civilian Complaint Review Board, which handles civilian complaints against the police.
1 People place a higher value on a good they own then a matching good they do not own. 2 People asked to give up something they have or want will usually ask for something at least twice as valuable in return. 3 Kahneman, D., Knetsch, J., & Thaler, R. (1990). Experimental Test of the Endowment Effect and the Coase Theorem. Journal of Political Economy 98(6), 1325-1348. 4 Throwing out a number that sets, consciously and unconsciously, one of the value boundaries of the negotiation. 5 Turning down an offer containing just what you asked for because of who made the offer. 6 Your Best Alternative To a Negotiated Agreement; what you will do instead if this negotiation fails. 7 What your client is demanding. 8 Why your client is demanding something.
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